According to the Dallas Morning News, a Richardson bar is being sued after a customer allegedly went on an 8-hour drinking binge and then drove home drunk. As reported, savage arrived around at W.W. Fairfields at around 6:00 pm on December 19th, and the bar continued to serve him until after 2:00 a.m. After leaving the bar, Savage crashed into a concrete dividing wall on Central expressway a little after 3:00 am, which resulted in serious injury. Savage eventually hired attorney Tom Carse to represent him in the matter, and they have filed suit seeking $1 million in damages from the bar.
When stories like this are reported, they have a tendency to cause some outrage from the public. This is especially true in situations like this where the drunken patron sues the bar for their own damages as a result of an accident. I have to admit, it seemed counterintuitive to me when I first studied Texas Dram Shop law. Texas Dram Shop law provides an avenue under Texas Alcohol and Beverage Code for victims of drunk driving accident, as well as patrons who “caused” the accident, to sue a restaurant, bar, or any other establishment licensed by the State of Texas if they serve a customer to the point of obvious intoxication where they knew or should have known that they presented a danger to themselves and others.
Most react this way: why do we even have that law? Are people not responsible for their actions?
My answer is simple: Yes, but bars are also responsible for their actions.
Here is why:
(1) Bars are Licensed by the State of Texas, and their Staff is trained in Serving Alcohol and Identifying Drunken Patrons
Bars, restaurants and other establishments that serve alcohol must be licensed by the State of Texas. Just like with any licensing, there comes duties. The State of Texas has placed an affirmative duty by enacting the Dram Shop laws on the alcohol establishment not to overserve patrons, because doing so places the customer and the public at risk when they leave.
In addition to that, the State of Texas requires each employee of any such establishment to have bi-yearly training and certification on serving alcohol, and any such training includes how to identify an intoxicated customer and what to do in the event a customer has become intoxicated.
This means that the bar knows they have a duty, because they are licensed with the State. On top of that, each employee is certified and has a license to serve alcohol indivdually at an licensed bar or restaurant and they have a duty not to overserve their customer. Additionally, bars typically have standards or protocols in place should a customer become intoxicated, and these protocols are typically required by the State. When an event like the Gordon Savage was involved in occurs, that means several layers of duties and protocols were likely not followed the way they were designed and required to be followed.
(2) Bars and Restaurants Gain Financially from the Sale of Alcohol
Establishments who are licensed by the State to serve alcohol gain financially as a result of the license. That is why liquor licenses cost so much money. Bars and restaurants therefore have an incentive to sell their customers lots of alcohol. If they remain completely shielded from liability when their customers leave and injure or kill someone on their way home, then what is the incentive for bars to encourage their customers to “drink responsibly”, as the advertisements go?
Many other industries are punished when they violate the system that pays their checks, so why is it so counterintuitive that alcohol establishments must serve their customers responsibly? Everyone complains about banking and mortgage lending schemes, but nobody talks about how much money restaurants make off alcohol and their link to drunk driving accidents and fatalities. That seems counterintuitive to me. If we are going to hold banks and mortgage lenders accountable for their actions that only harm people’s wallets, why wouldn’t we also hold bars and restaurants accountable for the drunk driving accidents and fatalities their customers cause each year?
(3) Proving a Dram Shop Case is Rigorous
Dram Shop cases are not easy to prove. You must prove (1) it was apparent to the provider of alcohol that at the time the person was served alcohol, they were obviously intoxicated to the extent that they presented a clear danger to himself and others; and (2) it was the intoxication of the customer that was the proximate cause of the damages.
Just think about that for a second. Not only does the customer have to be intoxicated, but it must have been apparent to the server at the time they served the alcohol to the customer. That is a hurdle in-and-of itself.
Next, it must be proved that the server understood the customer to be intoxicated to the point that they presented a clear danger to himself and others. This makes the burden very high.
Next, a Plaintiff must prove that it was intoxication and not anything else, that was the proximate cause of the damages. This means that there can “breaks the chain” of causation. Think of it this way: the individual, the intoxication of that individual and the accident are like links on a chain. For a Plaintiff to prove that their intoxication was the “proximate” cause of the accident, their intoxication must be the closest link in the chain to the accident, any link between the accident and the intoxication will “break the chain” of causation.
On top of all of that, there is what is called the “safe harbor provision”. The safe harbor provision essentially provides a defense for the restaurant and can act to save them from any liability. It goes like this:1) the employer requires its employees to attend a commission-approved seller training program; (2) the employee has actually attended such a training program; and (3) the employer has not directly or indirectly encouraged the employee to violate such law. Here is the thing. The bar only has to prove elements (1) & (2) in order to be saved from liability under the safe harbor, but a plaintiff must meet all three in order to prove the safe harbor provision does not apply.
All things considered, the Texas Dram Shop Laws serve a great public policy service and place a sufficient burden on alcohol establishments and their employees who serve alcohol not to overserve customers, all the while providing an avenue for relief for victims and customers who have been injured when someone has been overserved.
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For more information about the news story cited above see: http://www.dallasnews.com/news/local-news/20160625-crash-victim-sues-richardson-bar-for-1m-saying-it-should-have-cut-off-his-8-hour-drinking-binge.ece